Petrovski v Transport Accident Commission
[2019] VCC 1666
•17 October 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-03569
| MILE PETROVSKI | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 & 12 September 2019 | |
DATE OF JUDGMENT: | 17 October 2019 | |
CASE MAY BE CITED AS: | Petrovski v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1666 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Aggravation to pre-existing cervical and lumbar spine conditions – right knee injury – causation – pain and suffering consequences
Legislation Cited: Transport Accident Act 1986
Cases Cited:Petkovski v Galletti [1994] 1 VR 436; R J Gilbertsons Pty Ltd v Skorsis [2000] VSCA 51; Humphries v Poljak [1992] 2 VR 129; Haden Engineering Pty Ltd v McKinnon [2010] 31 VR 1
Judgment: Application unsuccessful
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms A MacTiernan with Mr P Haddad | Zaparas Lawyers |
| For the Defendant | Mr P Rattray QC with Ms A Bannon | Solicitor to the Transport Accident Commission |
HER HONOUR:
Introduction
1 On 30 January 2014, Mr Petrovski was injured in a transport accident, when his car was struck from behind, whilst he sat stationary at traffic lights. At the time of the accident, Mr Petrovski had long-standing problems with his right shoulder, neck, lower back and knees. Mr Petrovski claims to have suffered an aggravation to his neck, lower back and right knee in the accident.
2 In order for Mr Petrovski to be entitled to claim common law damages for his injuries, he must satisfy me that either he injured his spine or right knee in this accident, and that the impairment of either one of those body functions, satisfies paragraph (a) of the definition of “serious injury” contained in s93(17) of the Transport Accident Act.
3 The TAC accepts that Mr Petrovski’s spine was injured in this accident, but disputes that his right knee was injured in the accident. Further, the TAC alleges that Mr Petrovski was an unreliable witness whose pre-existing conditions had already significantly impacted upon his life, such that the consequences arising from his aggravated spinal impairment cannot be described as at least “very considerable”.
4 Only Mr Petrovski was called to give evidence, and he was cross-examined. Also in evidence were affidavits from his son, together with medical reports, clinical records, video surveillance and other material. I have read and viewed these tendered documents, together with the transcript of the proceedings. I shall not refer to all of that material in the course of this judgment, but rather to those parts of the evidence which I consider necessary to give context to and explain the conclusions reached in this judgment.
Mr Petrovski’s life before the accident
5 To assess the impact of the accident related injuries upon Mr Petrovski, it is important to first understand how he functioned and enjoyed his life prior to the accident.
6 Mr Petrovski was 62 years of age at the time of the accident, and is now 68. He was born in Macedonia and migrated to Australia in 1970. He is married and has one adult son.
7 Soon after arriving in Australia, Mr Petrovski obtained employment as a labourer in a meat factory. He thereafter worked for several employers, predominantly as a boner and labourer. In April 2001, in the course of his employment, Mr Petrovski injured his right shoulder and neck as a result of which he subsequently underwent right shoulder surgery. Mr Petrovski said that the surgery did not help him and that he has continued to suffer discomfort in his right shoulder and upper arm since that time.
8 In his affidavits, Mr Petrovski said that his lower back pain did not commence until approximately 2010. In cross-examination, however, in answer to a question I asked of him, Mr Petrovski said that his lower back pain commenced around the time he injured his right shoulder, being approximately 2001.
9 In addition to right shoulder, neck and lower back pain, Mr Petrovski also suffered occasional right knee pain. In July 2001, an x‑ray was taken of his right knee which was reported as normal. On 1 April 2003, a further x‑ray was taken which was reported as demonstrating mild osteo-arthritic marginal lipping involving the tibio-femoral compartments and patella-femoral joint. In his first affidavit sworn 5 September 2016, Mr Petrovski said that his right knee pain resolved sometime thereafter.
10 In 2008, Mr Petrovski returned to work on light packing duties, but ceased such work in July 2009, when he injured his right bicep muscle after lifting a kettle at home. Mr Petrovski has not worked since that time.
11 After ceasing work, Mr Petrovski said that he was referred for physiotherapy on his right arm for several months. In his first affidavit, Mr Petrovski said that he continued to experience weakness in his right arm after that time, and “also some worse pain in the right shoulder and neck for a while.”
12 On 22 March 2010, an x‑ray was taken of Mr Petrovski’s cervical spine. It was reported as demonstrating lower cervical degenerative changes, with foraminal narrowing at C5/6 bilaterally and C6/7 on the right.
13 In 2010, Mr Petrovski also said that he had some back pain, for which he attended the Sunshine Hospital. In his first affidavit, Mr Petrovski said that his back pain then “resolved over a few weeks.”
14 However, the records of Mr Petrovski’s general practitioner, Dr Umit Cenap, indicate that Mr Petrovski complained to him of lower back pain in approximately October 2010, and on multiple occasions thereafter throughout 2011, 2012, and 2013. When these records were put to him in cross-examination, Mr Petrovski accepted the contents as being accurate, but continued to maintain, however, that he had only ever suffered such lower back pain once or twice a month.
15 On 23 September 2011, an x-ray was taken of Mr Petrovski’s lumbosacral spine. It was reported as demonstrating degenerative changes.
16 On 15 February 2012, Mr Petrovski attended upon Dr Cenap complaining of “bilateral knee pain”, as well as back pain. When this record was put to him in cross-examination, Mr Petrovski accepted that he had been worried about his knees at that time, that he had wanted imaging to be performed, and that he had also been prescribed medication which he took for his knee pain.
17 In 2013, Mr Petrovski stated that he had some right shoulder pain that had worsened and had spread into his neck. He was referred to rheumatologist, Dr Richard O’Brien, in April 2013.
18 In a letter to Dr Cenap dated 18 April 2013, Dr O’Brien noted that Mr Petrovski presented with a number of muscular articular problems, including in his neck, right shoulder, right elbow, left thumb, hand and lower back. In particular, Dr O’Brien noted that Mr Petrovski had a history of lower back pain dating back to about 2000, and that he felt such pain across his lower back, particularly in the right side. Dr O’Brien also noted that Mr Petrovski had suffered persisting “quite severe right shoulder, neck and upper right pain” since 2009, and that he had great difficulties using his right arm over head or in front of him. At the time of his examination, it was noted Mr Petrovski was taking Paracetamol, Brufen and the occasional Panadeine.
19 Dr O’Brien noted that Mr Petrovski was “very restricted in his normal exercise capacity and said that the back pain flares when he walks.”
20 On examination, Dr O’Brien noted that the lateral flexion of Mr Petrovski’s neck was reduced to 50 per cent of normal. There was some loss of normal lordosis, with movements restricted in his lumbar spine to about 60 per cent of normal. However, Dr O’Brien noted that Mr Petrovski’s straight leg raising was equal and normal and that there was no neurologic abnormality in his lower limbs.
21 Dr O’Brien considered that Mr Petrovski suffered cervical spondylosis and disc degeneration at C5/6 and C6/7 which contributed to his neck pain. He also considered that Mr Petrovski suffered degenerative changes in his lumbar spine and thought that the loss of lordosis suggested muscle spasm.
22 When aspects of this letter were put to him in cross-examination, Mr Petrovski said that he could not recall seeing Dr O’Brien, but accepted what had been written about him in the report.
23 On 11 June 2013, Mr Petrovski attended the Neurosurgical Outpatient Department of Western Health where it was noted that he complained of neck pain radiating down his right arm, as well as back pain and bilateral knee pain.
24 On 23 July 2013, an MRI scan was taken of Mr Petrovski’s cervical spine. It was reported as demonstrating degenerative spondylosis centred at C5/6 with mild central canal stenosis, severe bilateral C6 foraminal stenosis and severe right sided C7 foraminal narrowing.
25 On 1 September 2013, Dr Cenap wrote to the Department of Health Services, supporting Mr Petrovski’s application for a disability pension. In his letter, Dr Cenap detailed Mr Petrovski’s injuries, which included “severe arthritis in his neck, back, arms, hands and knees.” At the time of the letter, Mr Petrovski was prescribed two tablets of Panadeine, four times a day, 400mg of Brufen three times a day, as well as hydrotherapy twice per week. Dr Cenap stated that Mr Petrovski had also been treated with multiple steroid injections and physiotherapy, without any further improvement. Dr Cenap considered Mr Petrovski’s condition to be permanent.
26 On 24 September 2013, Mr Petrovski received a right C6 nerve root injection. Mr Petrovski said that he did not have any neck pain after the injection, which also helped to relieve some of his shoulder pain.
27 In addition to attending Dr O’Brien and Western Health in the 12 months prior to the accident, Mr Petrovski said in his oral evidence that he also continued to attend Dr Cenap on a fortnightly basis as well as undertaking hydrotherapy twice per week. Mr Petrovski said that he undertook hydrotherapy for his right shoulder, and expressly denied that it was for his lower back or neck pain.
28 In his affidavits, Mr Petrovski did not refer to being on any medication prior to the accident. In cross-examination, however, he said that he was taking Panadeine Forte and Brufen prior to the accident when his pain required it. Later in cross-examination, Mr Petrovski said that he took painkillers on a daily basis prior to the accident.
29 In his first affidavit, Mr Petrovski said that, prior to the accident, he used to look after his garden, mow the lawn, tend to his vegetable patch and do basic repairs around the house. He also said that he used to walk most days for about an hour, and that he walked on a treadmill when it was wet.
30 Mr Petrovski also said that, prior to the accident, he used to go on road trips with his wife to various different places including Lorne, Apollo Bay and Merimbula, and that he enjoyed fishing on these trips. However, in cross-examination, Mr Petrovski said that he had not been able to go fishing after he injured his shoulder, as he was unable to caste a line.
31 Mr Petrovski said that he used to enjoy watching local soccer teams, “although this did slow down a bit” before the accident.
32 Mr Petrovski also said that he used to enjoy Macedonian dancing with his wife.
33 In support of his claim, Mr Petrovski relied upon two affidavits from his adult son, Mr Benito Petrovski. In his first affidavit sworn 14 May 2019, Benito described his father as “very active and fit and healthy and lived a carefree lifestyle.” He said that prior to the accident, Mr Petrovski had a large garden that he maintained himself, and that he helped look after Benito’s son each day.
34 In his second affidavit, Benito acknowledged that his father experienced pain and restriction of movement in his neck and lower back prior to the accident, but maintained that his father was still “very self-reliant.”
35 I consider the picture that both Mr Petrovski and his son sought to convey in their first affidavits, to be in stark contrast to the contemporaneous clinical records relating to Mr Petrovski’s condition in the 12 months prior to the accident. In assessing the consequences to Mr Petrovski arising from the aggravated impairment, I must reconcile the differences in such evidence, in order to ascertain Mr Petrovski’s true state of health as at the time of the accident.
The accident and Mr Petrovski’s claimed consequences
36 On 30 January 2014, Mr Petrovski stated that he was sitting stationary in his car at a set of traffic lights, when the rear of his car was struck by another vehicle. Mr Petrovski said that his car was written off in this accident. Photographs taken at the time show extensive damage to the rear of his car.
37 Mr Petrovski was taken by ambulance to the Western Hospital’s Footscray Campus. Mr Petrovski said that he had a lot of neck pain, as well as some lower back pain at the time of his admission. Whilst at the hospital, imaging was taken of Mr Petrovski’s neck and lower back. The CT scan of Mr Petrovski’s cervical spine was reported as demonstrating degenerative changes with a degree of canal stenosis and excess foraminal stenosis. There was no overt fracture and no gross soft tissue swelling. The x‑ray of Mr Petrovski’s lower back was reported as demonstrating no obvious lumbar spine fracture and no abrupt loss of vertebral body height or intervertebral disc space.
38 Mr Petrovski said that he was discharged from the hospital later that day with painkillers, and was told to attend his general practitioner.
39 Mr Petrovski said that he developed bruising across his chest over the next few days, and was also aware of pain in his right knee.
40 On 4 February 2014, Mr Petrovski attended upon Dr Cenap. In his clinical notes, Dr Cenap noted Mr Petrovski’s involvement in the accident and that he presented with a complaint of neck and back pain. Dr Cenap prescribed Panadeine, Brufen and OxyNorm.
41 On 6 February 2014, Mr Petrovski lodged a claim for compensation with the TAC. In his claim form, Mr Petrovski stated that he had suffered the following in the accident, “laceration to his chest, lower back pain, neck pain, bruising to abdomen, swollen to back of neck, whiplash, right knee pain”. In this form, Mr Petrovski also acknowledged that he had previously undergone surgery to his right shoulder and that he suffered “arthritis in neck, lower back pain.”
42 On 10 February 2014, an x‑ray was taken of Mr Petrovski’s entire spine and pelvis. It was reported as demonstrating joint degenerative changes, particularly at C5/6 and bilateral bony neural exit foraminal stenosis at C5/6 and C6/7. It was further reported that the intervertebral disc heights in his lumbar spine were preserved, but that there was evidence of multilevel facet joint arthropathy in the mid and lower lumbar spine. There were no suspicious lesions or fractures and his pelvis was intact.
43 Following the accident, Mr Petrovski said that he continued to experience neck pain and headaches, and that he had difficulty sleeping. He said that he required ongoing painkillers and that he was referred for physiotherapy treatment which he attended once or twice a week for about eight months. Mr Petrovski also said that he had hydrotherapy for approximately three months.
44 In a report from physiotherapist, Richard McGlynn, dated 20 April 2015, it was noted that Mr Petrovski had presented for physiotherapy treatment on 27 February 2014, complaining of right sided neck and lower back pain and severe headaches, all of which were impacting upon his function and sleep pattern. Mr Petrovski was initially treated with hands-on therapy before progressing to a graduated gym strengthening and hydrotherapy program. I note that Mr McGlynn makes no reference in this report to Mr Petrovski complaining of any right knee pain.
45 On 17 September 2014, an MRI scan was taken of Mr Petrovski’s cervical spine. It was reported as demonstrating disc degeneration at C6/7, indentation of the thecal sac at C5/6 with bilateral exit foraminal narrowing, causing impingement of bilateral exiting C6 nerve roots. It was also noted that there was indentation of the thecal sac at C6/7 and right exit foraminal narrowing seen causing indentation of the right exiting C7 nerve root.
46 On 10 October 2014, an MRI scan was taken of Mr Petrovski’s lumbosacral spine. It was reported as demonstrating moderately advanced L3/4 canal stenosis, due to moderate posterior disc prolapse and marked bilateral degenerative facet joint and flaval hypertrophy. There was mild compression of the L3 nerve roots bilaterally within narrowed foramina. It was also noted that there was a moderately severe L5/S1 foraminal stenosis, contributed by peripheral disc bulge and facet joint spurring and causing mild L5 nerve root compression bilaterally. There was also mild bilateral L4/5 foraminal stenosis and marked L4/5 facet joint arthritis.
47 In November 2014, Dr Cenap referred Mr Petrovski to neurosurgeon, Mr James King. In a report dated 8 April 2015, Mr King noted that Mr Petrovski described “no significant neck or back pain prior to his accident.” Mr King then obtained a history of the accident, as a result of which he noted that Mr Petrovski had developed neck and lower back pain. Mr King reviewed the medical imaging that had been taken subsequent to the accident and stated that it would have been reasonable to expect Mr Petrovski to have suffered back and neck pain after a high speed transport accident. However, Mr King stated that “it is difficult to know whether he had significant symptoms or imaging findings prior to his injury but he did not give a history of neck or back pain prior to the accident.”
48 In his first affidavit, Mr Petrovski said that he had been aware of “some pain” in his right knee since the accident, but that it was “not too much of a problem” and he thought it would go away.
49 Mr Petrovski continued to attend upon Dr Cenap on a regular basis from the time of the accident. However, I note that he does not record any complaint of right knee pain at any point in 2014. Notwithstanding the absence of any such complaints in the medical records, Mr Petrovski said in cross-examination that he “did bring up the issue” with Dr Cenap, but that he was unable to say whether or not such complaints had been recorded.
50 On 16 February 2015, Mr Petrovski attended upon Dr Cenap, who noted neck pain, back pain and right leg pain.
51 On 8 March 2015, Dr Cenap wrote to Mr Petrovski’s solicitors detailing the nature of the injuries Mr Petrovski had suffered in the accident. In this report, Dr Cenap referred to the aggravation of Mr Petrovski’s neck and lower back pain, for which he had arranged physiotherapy and hydrotherapy treatment, and for which he had prescribed Lyrica. Dr Cenap also stated that Mr Petrovski had constant pain in his neck, right arm, back and both legs, such that his neck, right arm and back were “severely disabled” and his legs “moderately disabled.”
52 In May 2015, Mr Petrovski was examined by medico-legal general surgeon, Mr Charles Flanc. In his report dated 20 May 2015, Mr Flanc briefly detailed Mr Petrovski’s past medical history including the injury to his right shoulder, as well as “arthritis affecting his neck and lower back.” Mr Flanc noted that, prior to the accident, Mr Petrovski reported intermittent neck pain which he felt two or three times a month and for which he would take Panadol tablets for relief. He also noted that Mr Petrovski reported “intermittent low back pain” which he also suffered two or three times a month and for which he would use hot packs for relief. Mr Petrovski said that he could not recall any past history of right knee pain, despite Mr Flanc having noted that his prior medical records showed complaints of past knee pain.
53 Mr Flanc then obtained a history as to the circumstances of the accident, following which he noted that Mr Petrovski’s neck pain had become more severe, and that he experienced constant pain and flare-ups more frequently than he did prior to the accident. Mr Petrovski also reported that his lower back pain had become more severe with pain radiating down his right leg to his foot and toes. It was noted that his back pain was more severe when sitting for longer than 30 minutes or with excessive walking on an uneven surface.
54 Mr Flanc then noted that Mr Petrovski stated that he had been suffering from pain “over the front of the right knee on excessive walking or on steps. He has not had any episodes of the knee giving way although it feels a little ‘unstable’ when he walks up stairs.” This was the first recorded complaint by a health care provider, that Mr Petrovski had suffered right knee pain after the accident.
55 Mr Flanc was of the opinion that the accident had aggravated Mr Petrovski’s pre‑existing degenerative condition of his cervical and lumbar spine. In relation to his complaints of right knee pain, Mr Flanc stated that it was possible the accident had aggravated a pre‑existing arthritic condition in Mr Petrovski’s right knee by rendering it more symptomatic than it was prior to the accident. He doubted that the aggravation was severe.
56 On 22 June 2015, Mr Petrovski attended Dr Cenap, who noted that he complained of right knee pain.
57 In a report dated 17 August 2015, Dr Cenap noted that Mr Petrovski had suffered arthritis in his neck, back, hips and knees prior to the accident, but that the pain and mobility in his neck and back had worsened following the accident, Dr Cenap detailed the treatment he had provided to Mr Petrovski since that time, including prescriptions for Lyrica. Dr Cenap noted that Mr Petrovski had tingling in his right ring and little fingers, which had not existed prior to the accident. He considered these symptoms to have been caused or aggravated by the accident. In this report, Dr Cenap also referred to Mr Petrovski’s legs being “moderately disabled because of pain and reduced endurance.”
58 On 14 September 2015, an MRI scan was taken of Mr Petrovski’s right knee. It was reported as demonstrating extensive complex tearing of the posterior horn and body of the medial meniscus, marked femoral trochlear groove cartilage, chondromalacia, and mild to moderate medial compartment degenerative change.
59 On 8 October 2015, Mr King re-examined Mr Petrovski, noting that his main complaint at that time was bilateral cervical occipital pain with worsening pain down his right arm. Mr King also noted that Mr Petrovski complained of broad based lower back pain, as well as pain in his right knee.
60 In a letter written to Dr Cenap on this day, Mr King stated that he considered the MRI scan, taken one year previously, to demonstrate degenerative change in Mr Petrovski’s cervical region, with multilevel foraminal stenosis. Mr King also noted that nerve conduction studies demonstrated evidence of a mild ulnar neuropathy on the right side, together with right-sided C6/7 radiculopathy. In order to address the radiculopathy, Mr King suggested that Mr Petrovski undergo a nerve root sheath injection, but noted that Mr Petrovski was reluctant to undergo any intervention.
61 On 28 October 2015, Dr Cenap referred Mr Petrovski to orthopaedic surgeon, Mr Russell Miller, in relation to his right knee condition. In a report dated 14 December 2015, Mr Miller obtained a history of the accident, including that Mr Petrovski reported then suffering some neck ache and the development of right knee pain and discomfort. Mr Miller noted that Mr Petrovski had difficulty with prolonged standing and walking and had some swelling in his knee. At the time of the examination, Mr Petrovski reported to Mr Miller that his major problem was his right knee.
62 Mr Miller was of the opinion that Mr Petrovski had sustained an injury to his right knee in the accident, which was an aggravation of a pre-existing disease, and the development of a large medial meniscal tear. Mr Miller recommended that Mr Petrovski undergo a right knee arthroscopy.
63 Mr Miller was also of the opinion that Mr Petrovski had suffered a musculo-ligamentous strain and aggravation of degenerative disease in his cervical and lumbar spine in the accident. Mr Miller did not consider there to be any evidence of radiculopathy or neurological deficit.
64 On 30 October 2015, x-rays were taken of Mr Petrovski’s cervical and lumbar spine and right knee. The x-ray of his cervical spine was reported as demonstrating multilevel degenerative changes. The x-ray of his lumbar spine was reported as demonstrating multilevel facet joint arthropathy, with large anterior osteophytes at L1/2, L3/4 and L4/5. The x-ray of his right knee was reported as demonstrating a mild loss of joint space in the medial compartment on weight bearing. There were small osteophytes developing at the superior and inferior margins of the patellofemoral joint without loss of joint space. There was no focal osseous lesion.
65 On 30 November 2015, Dr Cenap wrote to the TAC in relation to Mr Petrovski’s injuries. Dr Cenap stated that, in the accident, Mr Petrovski “developed neck and back pain as well as right knee pain. He was wearing his seat belt. Despite his seat belt he had neck, back injury as well his right knee, which hit the front dashboard.” Dr Cenap initially considered Mr Petrovski’s right knee pain to be radiating from his back. However, he arranged for an MRI scan to be taken of Mr Petrovski’s right knee, as his right knee pain had gradually worsened. By late November 2015, Dr Cenap noted that Mr Petrovski’s knee pain had deteriorated, such that he had considerable difficulty bending his knee, standing and walking. In such circumstances, Dr Cenap considered Mr Petrovski to require an urgent arthroscopic repair.
66 In this letter, Dr Cenap expressed his opinion that Mr Petrovski’s right knee injury was directly related to the accident, on the basis that he had hit his knee on the dashboard, and had experienced “an increasing pain and restricted mobility since the day of his accident.”
67 On 6 January 2016, an MRI scan was taken of Mr Petrovski’s cervical spine. It was reported as demonstrating a mild posterior disc bulge with no nerve root compression at C4/5. There was a mild posterior disc bulge contacting the anterior cord with mild cervical canal stenosis at C5/6. There was also a mild posterior disc bulge contacting but not displacing the anterior cord at C6/7.
68 On 15 March 2016, Mr King reviewed Mr Petrovski. In a letter to Dr Cenap, Dr King noted that Mr Petrovski felt that both his neck and lower back were “equally problematic” at that time. Mr King once again recommended that Mr Petrovski could undergo a cervical nerve root sheath injection.
69 In March 2016, Mr Petrovski was examined by medico-legal neurologist, Professor Stephen Davis. In his report dated 23 March 2016, Professor Davis detailed Mr Petrovski’s clinical history, noting that he had suffered a past right shoulder injury, “rheumatism”, and back pain prior to the accident. Mr Petrovski stated that he was generally in good health before the accident, and was “adamant” that he was not on any analgesia in the period leading up to the accident.
70 When this aspect of Professor Davis’ report was put to Mr Petrovski in cross-examination, he replied that on the “… particular day when the accident happened, I had not taken any medication because I was due to drive.”
71 Professor Davis then referred to Mr Petrovski’s medical records from Western Health which pre-dated the accident. He noted that such records indicated that Mr Petrovski had attended the Western Hospital in 2013 with right arm radiculopathy and that an MRI scan had been taken of his cervical spine. Professor Davis noted, however, that Mr Petrovski denied suffering “significant neck or back pain in the period prior to the accident in January 2014.”
72 At the time of this examination, Mr Petrovski complained to Professor Davis that the pain was worst in his neck, that he had stiffness and difficulty turning his neck, as well as pain in both shoulders and his lower back. It was also noted that Mr Petrovski complained of pain in his right knee which radiated down the right thigh to the level of the knee and then down the leg into his foot. Mr Petrovski reported experiencing increased symptoms in all of his painful areas, but claimed that his most severe disability related to the pain in his lower back and right knee.
73 Professor Davis associated the accident with a whiplash injury and the worsening of Mr Petrovski’s pre‑existing symptomatic cervical spondylosis, together with a worsening of his pre‑existing lower back pain. Additionally, Professor Davis said that Mr Petrovski “may” have had some trauma to the right knee.
74 Professor Davis ultimately concluded, “it is very difficult to tease out the precise effects of the 2014 accident over and above the base line problems.”
75 On 9 September 2016, an x‑ray and ultrasound were taken of Mr Petrovski’s right knee. The ultrasound demonstrated small knee joint effusion. The x‑ray demonstrated mild to moderate degenerative changes of the right knee.
76 On 21 September 2016, Mr Miller performed an arthroscopy on Mr Petrovski’s right knee. In a report dated 23 October 2017, Mr Miller stated that the arthroscopy revealed a complex degenerative medial meniscal tear. He noted minor chondro pathology over the femoral trochlear, with unstable chondral tissue and areas of exposed bone. Mr Miller performed an arthroscopic medial meniscectomy and chondroplasty.
77 Mr Miller considered the relationship between the accident and Mr Petrovski’s right knee condition to be “complex and multifactorial.” He considered it likely that Mr Petrovski had pre-existing disease in his right knee, which was aggravated by the accident, such that further injury occurred.
78 In May 2017, Mr Petrovski returned to Mr McGlynn for physiotherapy and hydrotherapy treatment. By January 2018, however, Mr Petrovski said that Mr McGlynn advised there was nothing further that could be done for him, other than that he continue with regular exercise, including hydrotherapy.
79 In November 2017, Mr Flanc re-examined Mr Petrovski. In his report dated 29 November 2017, Mr Flanc noted that Mr Petrovski continued to suffer from neck pain which spread up the back of his head, and into his right arm, as well as lower back pain. Mr Petrovski reported that he was able to walk for up to one hour before the accident, but said that he cannot now walk further than 500 metres, at which time he has to stop due to the severity of the pain in his lower back. Mr Petrovski continued to report tingling and numbness into his right leg.
80 Mr Flanc noted that Mr Petrovski said he had initially improved after the right knee surgery, but that his pain had “become more severe again.” It was noted that Mr Petrovski felt pain on kneeling and even in bed “if his legs touch each other.” At the time of the examination, Mr Petrovski was taking Panadol, Voltaren, Lyrica and Nurofen for his pain.
81 Mr Flanc then noted that Mr Petrovski reported that he was unable to lift any heavy weight; was unable to dig in the garden, but could mow the lawn; and was unable to drive his car for longer than 30 minutes. It was also noted that Mr Petrovski said he could go shopping with his wife, but that he either sat and waited for her, or pushed the trolley. Mr Petrovski also complained that kneeling aggravated the pain in his right knee and lower back.
82 Mr Flanc was of the opinion that the accident may have aggravated the pre‑existing degenerative condition in Mr Petrovski’s cervical spine, but did not consider any new neurological consequences to have arisen from the accident. In relation to his lower back, Mr Flanc was of the opinion that the accident may have aggravated Mr Petrovski’s pre‑existing condition, rendering it more symptomatic than it was prior to the accident, but was also of the opinion that there were no neurological consequences and no evidence of radiculopathy. In relation to his right knee condition, Mr Flanc considered the situation to be more complex than it had been at his previous examination. At this time, he noted that Mr Petrovski’s symptoms had become more severe, and that an MRI scan had identified a torn medial meniscus, for which he underwent surgery by Mr Miller. In respect of the torn medial meniscus, and whether or not it was a degenerative tear which pre-dated the accident, or was caused or aggravated by the accident, Mr Flanc stated, “the determination of the contribution of the accident to the condition of his knee is difficult and lies in the sphere of the orthopaedic surgeons.”
83 In December 2017, Mr Petrovski was examined by medico-legal orthopaedic surgeon, Mr Max Esser. In his report dated 21 December 2017, Mr Esser detailed the circumstances of the accident, including that Mr Petrovski had claimed “everything was sore” after the accident. Mr Esser noted that Mr Petrovski said he had a problem with neck pain and lower back pain, and that he had later attended Mr Miller due to pain and discomfort in his right knee. Mr Esser considered it “very difficult to get a precise description of this man’s symptoms at any time during the consultation.”
84 At the time of the examination, Mr Petrovski complained that his worst symptom was his lower back, that he had a problem with sitting, and that he avoided lifting objects weighing more than three to four kilograms in weight. It was noted that Mr Petrovski made reference to the fact that he is aware of the pain and discomfort in his back when he walks for more than 500 metres. It was also noted that he was aware of pain and discomfort in his neck and that he could only sleep for three to four hours at a time due to neck discomfort. Mr Petrovski described pain and discomfort in his right knee and said that whilst the arthroscopy had helped him for 12 weeks, he now had difficulty walking more than 500 metres at a time, and experienced discomfort in his knee when walking for long periods of time.
85 Mr Esser was of the opinion that the degenerative disease in Mr Petrovski’s cervical and lumbar spine had been exacerbated in the accident, but that the exacerbation had since ceased. Mr Esser also considered there to be very little in the way of objective evidence demonstrating any continuing significant abnormality in either of Mr Petrovski’s neck or lower back.
86 Mr Esser stated that whilst he considered Mr Petrovski’s right knee injury to have been as a result of the accident, he felt there was very little by way of symptoms with respect to his right knee at the time of the examination.
87 On 17 January 2018, a further MRI scan was taken of Mr Petrovski’s right knee. It was reported as demonstrating severe patellofemoral joint osteoarthritis, and a longitudinally orientated partial thickness tear through the inner third of the posterior horn medial meniscus and a cluster of synovial cysts on the anteromedial aspect of his knee.
88 On 24 January 2018, Mr Petrovski swore his second affidavit in support of this application. Mr Petrovski said that he continued to take Panadol and Nurofen every day, as well as Lyrica and Voltaren. At that time, Mr Petrovski said that he had developed a routine of attending his local leisure centre, three to five times a week. On these days, he would warm up on an exercise bike, use a treadmill and walk in the pool before finishing in the spa and sauna. Mr Petrovski said that he obtained some temporary relief from his symptoms after having been to the gym and the pool. Mr Petrovski stated that his right knee had returned to the state it had been in prior to the knee arthroscopy, and noted that it would hurt if he sat or stood for longer than 30 minutes at a time. Mr Petrovski also said that he continued to experience pain in his back, which varied in intensity, and spread down his buttocks and into his legs, especially into his right calf and foot. Mr Petrovski said that when his pain was really bad, he would try and rest by watching TV.
89 In addition, Mr Petrovski stated that he had burning pain in his neck which increased with any movement of his neck. He said that his neck pain travelled into his head resulting in headaches. He said that his neck pain also caused him to wake often from his sleep, that his sleep was broken and that he had to get up a few times a night due to pain.
90 As a consequence of his injuries, Mr Petrovski claimed that he was limited to driving for only 30 minutes at a time, and that he was mostly restricted to walking around his house. Mr Petrovski said that when he went shopping with his wife, he felt unstable on his feet due to his knee pain, and preferred to use a trolley to help him. Mr Petrovski also claimed that he was unable to play with his two grandchildren, as the pain and restriction of movement he experienced made it too difficult. Mr Petrovski stated that he had not been back to Macedonia since 2005, and said that whilst he would like to go back and visit his family, he did not feel it would be possible, as his back, neck and knee pain would prevent him from sitting on a plane. Mr Petrovski also said that he has not been to any soccer games since the accident, as it would be too much activity for him to stand and watch.
91 In January 2018, Mr Petrovski was re-examined by Professor Davis. In his report dated 26 January 2018, Professor Davis noted that Mr Petrovski’s neck pain had improved significantly since the last examination, but that his back was “very bad”. It was also noted that Mr Petrovski had pain in his right knee, which had returned after a period of approximately 12 months following his arthroscopy. Professor Davis noted that Mr Petrovski’s walking was restricted due to the pain in his right leg up to his hip, as well as the pain in his right heel. At that time, it was noted that Mr Petrovski might still mow his lawn, but that it took him two hours instead of one, and that washing his car was more difficult due to the pain.
92 Professor Davis reiterated his previous opinion that there had been a worsening of Mr Petrovski’s pre‑existing neck and lower back pain in the accident and that he had additionally sustained orthopaedic trauma to his right knee. Once again, Professor Davis noted that it was difficult to separate those effects of the transport accident which were over and above Mr Petrovski’s pre‑existing neck and lower back pain.
93 On 9 February 2018, Mr King provided a medical report to Mr Petrovski’s solicitors. In his report, Mr King offered the following opinion as to the role in which the transport accident had played in respect of Mr Petrovski’s current incapacity:
“In a man of 60 years of age, it is likely that cervical and lumbar degeneration disease/spondylosis was present prior to the accident. The history provided by the plaintiff suggests that the symptoms were very minimal prior to the accident. He gives a history of severe exacerbation of neck and back pain after the accident. It is certainly consistent that trauma on a background of pre‑existing spondylosis can exacerbate symptoms.”
94 Further, Mr King considered his neck and back pain to be significantly impacting Mr Petrovski’s quality of life, and limiting his ability to work and engage in leisure activities. Mr King considered it likely the symptoms would continue and that Mr Petrovski would suffer long-term pain and disability.
95 On 14 March 2018, Mr Miller reviewed Mr Petrovski. At that time, Mr Miller noted that Mr Petrovski complained of recurrent problems with ache, discomfort and pain in his right knee, despite having initially obtained a reasonably good result from the arthroscopy. Mr Miller therefore arranged medical imaging and recommended further surgery.
96 On 17 June 2018, an MRI scan was taken of Mr Petrovski’s right knee. It was reported as demonstrating severe patello-femoral joint arthritis, with a partial thickness tear of the posterior horn of the medial meniscus and small synovial cysts.
97 On 12 July 2018, Mr Miller performed a further arthroscopy on Mr Petrovski’s right knee. In a medical report dated 10 September 2018, Mr Miller stated that there was some chondro pathology over the lateral tibial plateau, extensive chondro pathology over the lateral patellar facet with areas of exposed bone and extensive chondro pathology in the femoral trochlear. In this surgery, Mr Miller performed an arthroscopic chondroplasty, meniscectomy of the medial and lateral meniscus and a lateral release.
98 In July 2018, Mr Petrovski said that his son, daughter-in-law and grandchildren moved into his home, in order to assist him and his wife, who was ill at the time. Mr Petrovski said that his son did the home maintenance and lawn mowing from time to time, and that his daughter-in-law also helped out in the home.
99 On 13 August 2018, Mr Miller reviewed Mr Petrovski noting that he continued to experience ongoing symptoms in his right knee. Mr Miller was of the opinion that Mr Petrovski would require a total knee replacement in the future, as his symptoms were progressing. In his report dated 10 September 2018, Mr Miller expressed his opinion that the accident had played a significant role in the evolution of the disease in Mr Petrovski’s right knee.
100 On 29 October 2018, Mr Esser provided a supplementary opinion in this matter, having received additional material including reports and clinical records from both prior and subsequent to the accident. Mr Esser considered the x-ray taken in 2003 to suggest some early osteoarthritic changes. Mr Esser was of the opinion that such changes related to the medial compartment of the knee, which was consistent with the clinical findings he had documented in his report. Mr Esser then stated that, had Mr Petrovski experienced a significant injury to his knee following the accident, he believed he would have experienced pain, swelling and an inability to move his knee. Further, had he sustained a fracture to either the weight bearing portions of the medial or lateral femoral condyles or the patella, he considered Mr Petrovski may not have been able to weight bear on his knee.
101 Mr Esser considered Mr Petrovski’s ability to get out of the car after the accident, without assistance, to be indicative of a functional knee at that point in time. Mr Esser also noted that there was no mention of right knee pain in the ambulance report. Further, Mr Esser noted that the first recorded complaint of right knee[1] pain to Dr Cenap was in February 2015, some 13 months after the accident. Mr Esser considered the absence of any recorded complaints of right knee pain for that extended period of time to be inconsistent with Mr Petrovski having suffered a significant injury to his right knee in the accident.
[1]This is incorrect. At that time, Dr Cenap’s clinical note referred to right leg pain. It was not until May 2015, that a complaint of right knee pain was recorded by Mr Flanc.
102 In April 2019, Mr Flanc re-examined Mr Petrovski for the final time. In his report dated 15 April 2019, Mr Flanc noted Mr Petrovski’s current complaints of pain, including significant neck pain which was more severe in bed at night. Mr Petrovski reported that the pain in his lower back became more severe when he sat for longer than 30 minutes at a time, and that it was also aggravated by excessive walking. It was noted that Mr Petrovski continued to complain of tingling and numbness down his right leg, as well as constant pain in the front of his right knee, which was aggravated by driving or sitting for long periods. Mr Flanc noted that Mr Petrovski had stopped mowing the lawn, but that he was still able to drive his car for 30 minutes, noting that this activity aggravated his lower back and neck pain. It was also noted that Mr Petrovski still went shopping with his wife and that he pushed the trolley for her. It was noted that kneeling aggravated the pain in his right knee.
103 On 14 May 2019, Mr Petrovski swore a further affidavit in support of his application. At that time, Mr Petrovski stated that his right knee remained painful. He said that he continued to experience pain down his right leg and into his right foot, together with numbness. Mr Petrovski said that his lower back pain makes it difficult to move around, and caused him pain when he had to “sit or stand for too long.”
104 Mr Petrovski said he was attending his local leisure centre twice a week, where he used the spa, sauna and pool, from which he obtained some relief. Mr Petrovski said he had stopped using the exercise bike, as it was aggravating his knee pain.
105 Mr Petrovski stated he took Panadeine Extra and Nurofen Extra, as well as Lyrica and Glucosamine. He said he also wore a knee brace which gave him some stability when walking, and that he applied Deep Heat to his knee twice a day.
106 In a supplementary report dated 30 May 2019, Mr Flanc was asked to examine additional material, including video surveillance taken of Mr Petrovski in November and December 2017. Mr Flanc stated that he considered the activities viewed on the surveillance to suggest that “the described disabilities were in fact much less than indicated by Mr Petrovski in the history he provided.” Mr Flanc, however, commented that it was possible Mr Petrovski’s symptoms fluctuated in severity and that the video covered a period of time in which the symptoms were minimal or absent. Mr Flanc then concluded:
“In summary, I consider that it is quite possible that the transport accident of 30 January 2014 did result in an aggravation of the pre‑existing conditions as indicated in my reports, but the disability as shown in the surveillance videos was significantly less severe than he indicated.”
107 In August 2019, Mr Petrovski was examined by medico-legal neurosurgeon, Dr Hazem Akil. In his report dated 15 August 2019, Dr Akil detailed Mr Petrovski’s past medical history, including a history of haematoma in his right biceps region, previous shoulder surgery and a possible diagnosis of Type 2 Diabetes. Dr Akil made no reference to any pre‑existing symptoms in Mr Petrovski’s neck, lower back or right knee. He reported having reviewed scans taken of Mr Petrovski, but with no particularity.
108 Dr Akil diagnosed Mr Petrovski as suffering aggravation of cervical spondylosis as well as lumbar spondylosis. He stated that there was an element of facetogenic lower back pain caused by L4/5 facet joint arthropathy, which he directly attributed to his injury following the accident. Whilst acknowledging that Mr Petrovski had prior pre‑existing spondylosis, there was no detail as to the nature and extent of that condition. This report was extremely brief and is of no assistance to me in determining this claim.
109 In his final affidavit sworn 6 September 2019, Mr Petrovski confirmed that he continued to experience pain in his lower back, neck and right knee. Mr Petrovski stated that his right knee had “improved somewhat’, since swearing his previous affidavit. He said that his lower back was “by far” his worst pain, followed by his right knee pain, and lastly his neck pain. Mr Petrovski said that his lower back pain makes it difficult to move around, and that sitting or standing for too long “causes” pain.
110 Mr Petrovski said that he currently takes Lyrica, Panadeine Extra, Nurofen and Glucosamine.
111 Mr Petrovski said that he takes his grandson to school three days a week, and usually picks him up. He also takes his granddaughter to kindergarten two days a week and picks her up once a week. He also takes them to McDonalds as a treat, once or twice a month. Mr Petrovski said that he could no longer play football with his grandson at the local park.
112 Mr Petrovski said that he no longer mows the lawns, and now relies upon Benito to complete this task.
113 In support of his father’s application, Benito provided two affidavits which detailed the restrictions his father has experienced since the accident. Benito stated that his father started to ask for help a few months after the accident. Benito said that he “initially” helped him with the garden, as his father lived on a big block. Unfortunately this affidavit does not detail at what point Mr Petrovski reduced his gardening activities (and in particular, those activities for which he needed help or could no longer undertake), nor when he stopped gardening completely. In such circumstances, I gain little assistance from this affidavit, in terms of the progression of Mr Petrovski’s restrictions and his incapacity in the garden.
114 Benito also said that, as his father’s condition has worsened since the accident, he “cannot help out with the children.” I consider this statement to be inconsistent with Mr Petrovski’s evidence that he takes his grandchildren to and from school and kindergarten several times each week.
Mr Petrovski’s reliability as a witness
115 For several reasons, I have significant reservations as to Mr Petrovski’s reliability as a witness.
116 Firstly, I consider his memory to have been very poor at various times throughout the proceeding. Mr Petrovski frequently conceded that he was unable to recall what he had reported to doctors, including Dr Cenap, in the years prior to the accident. He also gave incomplete histories to the numerous medico-legal doctors whom he consulted after the accident for the purpose of this claim, as well as to his own treating surgeons, Mr King and Mr Miller. Such inaccuracies considerably limited the extent to which I was able to rely upon these medical opinions.
117 Secondly, at various times throughout the proceeding I considered Mr Petrovski’s evidence to be disingenuous. By way of example, when asked by Professor Davis what medication he was taking prior to the accident, Mr Petrovski denied taking any medication. When questioned about this comment in cross-examination, Mr Petrovski said that in answering Professor Davis’ question, he had been referring only to the day of the accident. In circumstances where Professor Davis had noted that Mr Petrovski was “adamant” that he was not on medication prior to the accident, notwithstanding his history of prior neck and back problems, I considered Mr Petrovski’s evidence on this to be disingenuous.
118 A further example was the evidence Mr Petrovski gave in respect of the hydrotherapy treatment he undertook prior to the accident. Mr Petrovski said this treatment was for his unrelated right shoulder injury, and not for his pre-existing lower back and neck conditions. Given Dr Cenap’s diagnosis (as at September 2013), that Mr Petrovski suffered severe arthritis and degenerative changes in his neck and lower back, I consider it probable that one of the reasons for which Mr Petrovski undertook hydrotherapy prior to the accident, was to submerge and gently exercise his lower back in warm water. His refusal to acknowledge this in cross-examination appeared to be both evasive and disingenuous.
119 Thirdly, I considered Mr Petrovski’s reported levels of incapacity both prior to, and subsequent to the accident to have been unreliable.
120 In respect of his level of activity and restrictions prior to the accident, I consider Mr Petrovski to have generally overstated his level of activity, yet significantly understated the longevity and amount of treatment he received for his pre-existing injuries. In circumstances where this application involves a comparison by me, as to Mr Petrovski’s level of impairment prior to and following the accident, the uncertainty surrounding such evidence makes this comparison difficult for me to undertake.
121 Mr Petrovski stated that he walked for an hour most days prior to the accident. I consider this to be unlikely in circumstances where Mr Petrovski had complained to Dr O’Brien in April 2013, that walking flared up his lower back pain. There is no evidence before me to suggest or explain a change in Mr Petrovski’s circumstances, from April 2013 until the time of the accident. In September 2013, Dr Cenap described his arthritis as severe, and said that his condition was stable. I therefore have reservations as to the accuracy of Mr Petrovski’s evidence that he walked daily for an hour prior to the accident. Mr Petrovski also claimed in an affidavit that his injuries the subject of this accident prevented him from fishing. In cross-examination, Mr Petrovski conceded that he had not fished since he had hurt his right shoulder, as he could no longer cast a line.
122 In respect of the extent of his pre-existing injuries, I consider Mr Petrovski made a number of misrepresentations in his first affidavit. Firstly, he did not mention suffering any knee pain beyond 2003. In contrast, Dr Cenap’s letter of September 2013 stated that Mr Petrovski suffered severe arthritis in his knees at that time.
123 Secondly, he only referred to suffering lower back pain in 2010, which he said resolved within a few weeks. However, Dr Cenap’s records reveal that Mr Petrovski made frequent complaints of lower back pain for a period of several years leading up to the accident date.
124 Thirdly, Mr Petrovski made no mention of the medication he took at the time of the accident. (It was not until near the end of his oral evidence that Mr Petrovski stated that he took pain medication on a daily basis prior to the accident.) He also failed to mention that he underwent hydrotherapy twice a week prior to the accident.
125 The combined effect of these inaccuracies in his first affidavit, is such that I consider Mr Petrovski’s evidence as to his pre accident state to be wholly unreliable.
126 In respect of his level of activity and restrictions following the accident, I consider the video surveillance taken of Mr Petrovski in November and December 2017, to successfully challenge the true extent of his claimed consequences. This footage, taken over several days in a four week period shows Mr Petrovski undertaking the following activities:
- leaning into a car, to buckle his grandchild in;
- attending a shopping centre with his wife on several occasions; on one occasion, he used a trolley, on another, he did not;
- gardening, including extended periods of kneeling and crawling to cut the edges of the lawn, as well as mowing his lawn and changing the grass catcher;
127 Save for him wearing a knee brace, I did not consider this footage to demonstrate any apparent restriction to Mr Petrovski’s mobility or level of activity.
128 I also considered this footage to be inconsistent with the level of restriction Mr Petrovski claimed at the time of his examination with Mr Flanc in November 2017, and in his affidavit sworn in January 2018.
129 When asked to explain his level of activity in the footage, Mr Petrovski said that some days are better than others, that his condition is usually better in the warmer weather and that he takes medication which helps him to be able to do things.
130 Additional video surveillance was taken of Mr Petrovski on three days in July 2019. In this footage, Mr Petrovski appears to walk more slowly than he was in November 2017. Nonetheless, he still attended a shopping centre on 26 July for over three hours. Whilst he sat down at times, and generally walked with a trolley, Mr Petrovski did not otherwise appear to have any significant restriction in his ability to move about the shopping centre for an extended period of time on this day.
131 Once again Mr Petrovski sought to explain this footage on the basis that he has good days and bad days. Mr Petrovski said that he still goes out to help his wife shop, despite being in pain. Mr Petrovski also stated that he was using the trolley to lean on in order to support his leg and back.
132 Notwithstanding that the video surveillance was relatively short, and taken over a period of only a few days, I consider the footage to have demonstrated that Mr Petrovski is more active than he sought to portray in his affidavits. If this footage had not been tendered, I believe I would have had an unrealistic impression of Mr Petrovski’s impairment or level of activity.
133 For the multitude of reasons detailed above, I considered Mr Petrovski to be an unreliable witness.
134 I consider the inconsistent medical histories Mr Petrovski gave to the treating and medico-legal practitioners to have undermined the opinions of those practitioners as to the cause of Mr Petrovski’s current impairment.
135 Further, inconsistencies in his evidence have made it difficult for me to determine the consequences of Mr Petrovski’s claimed impairment. I am not satisfied, on the evidence before me, that I have an accurate and reliable representation of Mr Petrovski’s state both prior and subsequent to the accident. Given the task required of me in this application, my reservations as to Mr Petrovski’s overall reliability, pervade my overall assessment of his case.
What was the extent of Mr Petrovski’s pre-existing spinal impairment?
136 All the doctors in this case accepted that Mr Petrovski’s pre-existing spinal impairment was aggravated in the accident.
137 In assessing Mr Petrovski’s application in respect of his spinal impairment, there must be a comparison between the plaintiff’s pre-existing condition, with the aggravated state. Pursuant to the well-known principles enunciated in Petkovski v Galletti,[2] I must consider only the consequences arising from the aggravation.
[2][1994] 1 VR 436
138 In R J Gilbertsons Pty Ltd v Skorsis,[3] Chernov JA summarised the task before me:
“In determining whether an injury which is an aggravation of a pre-existing injury is a “serious injury”, it is necessary first to make a comparison between the applicant’s condition before the accident that gave rise to the second injury and to his or her condition after that incident and thereby ascertain the degree of additional impairment that has been brought about by the second injury. It is then necessary to make an assessment of whether the additional impairment is serious and long term.”[4]
[3][2000] VSCA 51
[4]Ibid at [40]
139 As stated previously, the difficulty in the case before me, is that I do not have a clear picture of Mr Petrovski’s condition prior to the accident. It was not as he had described in his affidavit or to his subsequent treating and medico-legal doctors. Specifically, I do not accept that the symptoms were “very minimal’ as described by Mr King.
140 Considering the whole of the evidence, and given my reservations as to his reliability, I consider the following to be a fair summation of Mr Petrovski’s spinal condition as at the time of the accident:
- Mr Petrovski suffered long-standing degenerative changes in his cervical and lumbar spine;
- Mr Petrovski was in receipt of a disability pension, in part due to severe arthritis in his neck and back;
- Mr Petrovski took pain medication on a daily basis, including for pain in his spine. Such medications had been prescribed by Dr Cenap for several years;
- Mr Petrovski undertook hydrotherapy twice a week, which I consider to have been, at least in part, for the treatment of arthritic pain in his spine;
- Mr Petrovski suffered increased lower back pain when he walked. Given Dr O’Brien’s report and Dr Cenap’s records, I am not satisfied that he walked for an hour each day. For similar reasons, I also have reservations as to the extent to which Mr Petrovski was able to engage in Macedonian dancing with his wife;
- Mr Petrovski accepted that he did not attend soccer matches as frequently as he used to;
- Mr Petrovski maintained his garden, and also helped care for his grandson.
141 I note that there is no evidence as to the impact, if any, Mr Petrovski’s pre-existing conditions had upon his sleep.
Can the consequences to Mr Petrovski’s aggravated spinal impairment, be described as at least very considerable?
142 Having determined Mr Petrovski’s pre-accident condition (as best I am able on the evidence before me), I must now consider the consequences arising from the aggravated impairment to his spine. Those consequences must be “more than significant or marked”, and “at least very considerable”.[5]
[5]Humphries v Poljak [1992] 2 VR 129
143 I accept that Mr Petrovski suffered more frequent pain in his neck and lower back following the accident. This finding is supported by Dr Cenap, who reported that Mr Petrovski’s pain worsened, as did his mobility.
144 Prior to the accident, Mr Petrovski was taking pain killing medication on a daily basis. I accept that he has been consistently prescribed Lyrica following the accident, and note the he did not take Lyrica prior to the accident.
145 Mr Petrovski complains that his neck pain interferes with his sleep. However, it is difficult for me to assess the significance of this claimed consequence, as there is no evidence before me as to the quality of Mr Petrovski’s sleep prior to the accident. In circumstances where Mr Petrovski had long-standing shoulder and spinal pain, I am not willing to infer that Mr Petrovski enjoyed quality and uninterrupted sleep prior to the accident.
146 Mr Petrovski complained that he would like to go back to Macedonia, but felt that he was now unable due to the pain in his spine and right knee. However, I note that Mr Petrovski provided no detail or explanation as to the reason for which he had not travelled to Macedonia since 2005. In such circumstances, I am not satisfied that the aggravation of his pre-existing spinal impairment is the reason is now unable to travel to Macedonia.
147 Based on my observations of the video surveillance, I am satisfied that, until at least November 2017, Mr Petrovski was still able to garden, which included mowing the lawns, emptying the catcher, and kneeling for prolonged periods to trim the grass edges. Mr Petrovski said that he no longer mows his lawn, and that his son now does this for him. However, in circumstances where Mr Petrovski was able to maintain his garden for a period of almost four years after the accident, I consider any such current incapacity for gardening, if attributable to an accident related aggravation in his spine, to be only a modest consequence.
148 I am satisfied that Mr Petrovski is still able to go shopping, for considerable periods of time. I am also satisfied that Mr Petrovski is able to assist in the transporting of his grandchildren to school and kindergarten several times a week. While Mr Petrovski complains that he cannot play football with his grandson “anymore”, I am not satisfied that he was ever able to play football with his grandson prior to the accident, given his grandson is now only approximately seven years of age.
149 Ultimately, I am of the opinion that any comparison between Mr Petrovski’s pre-accident and post-accident spinal impairment, shows, at best, a marked change in Mr Petrovski’s pain levels and incapacity. However, I do not consider it possible to describe these consequences as “very considerable”. I therefore dismiss his application in respect of his spinal impairment.
Mr Petrovski’s right knee injury
150 The TAC disputed that Mr Petrovski injured his right knee in the accident. Save for the reference to the right knee in the claim form he completed in the week following the transport accident, there is otherwise no reference to Mr Petrovski suffering any right knee pain until at least one year after the accident.
151 Mr Petrovski claims that his right knee was painful from the time of the transport accident, and that he made complaints about this pain to Dr Cenap. However, Mr Petrovski attended Dr Cenap on regular occasions throughout this period, and there is no record of any such complaint in his notes. Whilst his notes are relatively brief, I consider it unlikely that Dr Cenap would not have recorded a complaint of knee pain, had Mr Petrovski made complained to him about this. Further, Dr Cenap did not mention knee pain in any of the reports he wrote in the initial 14 months following the accident.
152 I also note that Mr Petrovski obtained physiotherapy treatment from Mr McGlynn for at least three months after the accident, but that Mr McGlynn made no reference, in any of his reports, to Mr Petrovski complaining of right knee pain.
153 In November 2014, Mr Petrovski consulted Mr King regarding his neck and back pain. There is no mention in Mr King’s report of Mr Petrovski suffering right knee pain. In circumstances where Mr King is a neurosurgeon, I accept that he would not have treated any such knee injury, however, I consider it likely, that in obtaining a history, Mr King would have asked Mr Petrovski what injuries he suffered in the accident. The absence of any reference to right knee pain in Mr King’s report from that time, is consistent with the reports of Dr Cenap and Mr McGlynn for the same period.
154 Further, as Mr King subsequently recorded a complaint of right knee pain in October 2015, I consider it likely that he would have been interested in, and recorded such a complaint, had Mr Petrovski suffered and reported such right knee pain when he first attended Mr King.
155 Mr Flanc was the first doctor to obtain a detailed history of Mr Petrovski’s right knee pain in May 2015. He obtained a history that Mr Petrovski’s knee hit the dashboard and that Mr Petrovski had “been suffering” symptoms in his knee with excessive walking or on steps. However, Mr Flanc did not detail when such symptoms first commenced, and there is no detail as to the onset or progression of those right knee symptoms. Given the absence of any reported complaints of right knee pain until that time, the lack of detail in Mr Flanc’s report is such that it is of limited assistance in the determination of this issue.
156 The only evidence to support Mr Petrovski’s claim that he has suffered knee pain since the accident, is his own evidence. However, given my reservations as to his reliability, and the inaccuracy of the histories Mr Petrovski provided in his affidavits and to doctors, I prefer the contemporaneous medical records.
157 I consider it improbable, given the frequency with which Mr Petrovski obtained medical treatment during this 12 - 15 month period, that Mr Petrovski suffered persisting right knee pain throughout that period.
158 In November 2015, Dr Cenap attempted to attribute Mr Petrovski’s right knee pain to the accident. However, he appeared to provide this opinion on the basis that Mr Petrovski had hit his knee on the dashboard and had suffered right knee problems since that time. Dr Cenap stated that he had initially attributed Mr Petrovski’s right leg pain to radiation from his back, but later accepted that it was from his knee. However, in offering this opinion, Dr Cenap did not explain the absence of any complaints of right leg pain until February 2015. Nor Dr Cenap state when exactly Mr Petrovski provided him with the history that he hit his knee on the dashboard. As such, I do not consider there to be a clear basis upon which to understand Dr Cenap’s opinion on this issue.
159 I note that Mr Miller did not detail when the right knee pain was said to have commenced, and whether such pain had persisted since that time. Mr Miller’s ultimate opinion, in which he attributed the cause of Mr Petrovski’s right knee condition to the accident, appeared to be based on a presumption that Mr Petrovski had experienced right knee problems since that time. As Mr Petrovski has failed to satisfy me that he experienced right knee pain from the time of the accident, I must also reject Mr Miller’s opinion.
160 Mr Flanc considered it too difficult to determine the cause of Mr Petrovski’s right knee injury, in the context of his pre-existing degenerative changes. I note that, in acknowledging this difficulty, it appears that Mr Flanc was unaware of the lack of reported complaints of right knee pain in the 12 months following the accident. Had he been aware of the absence of such complaints, I believe Mr Flanc would have found the causal connection even more difficult to establish.
161 Mr Esser had the most detailed history in respect of Petrovski’s right knee injury prior and subsequent to the transport accident. He ultimately concluded that, had Mr Petrovski sustained a significant injury to his knee in the transport accident, he would have experienced and reported symptoms at the time of the accident or soon thereafter.
162 Whilst Mr Esser did not acknowledge the report of a right knee injury in the claim form, I am of the opinion that, on a fair reading of his report, Mr Esser thought it unlikely that Mr Petrovski had suffered a persisting injury in the accident, in circumstances where there was no recorded complaint of pain in the year following the accident.
163 A further difficulty Mr Petrovski faces in satisfying me that the accident is a cause of his right knee injury, is his failure to provide Mr Miller and Mr Flanc with details of his past history. Both surgeons took a history from Mr Petrovski that he did not suffer any prior knee problems. This history is inconsistent with the medical records. In such circumstances, both of their opinions are further compromised by this inadequate history.
164 I consider it likely there may have been a short-term temporary exacerbation of Mr Petrovski’s pre-existing right knee pain in the period immediately following the accident, on the basis that it was referenced in the claim form. However, there is no reliable evidence to support Mr Petrovski’s claim that it persisted thereafter.
165 Mr Petrovski is a man in his sixties, who had some pre-existing bilateral knee pain. I am of the opinion that the absence of any recorded complaints of right knee pain to any health practitioners for a 12 month period following the accident, makes it unlikely that Mr Petrovski suffered a persisting injury to his right knee in the accident. I consider it more likely that the onset of symptoms approximately 12 months after the accident, occurred notwithstanding the accident, and that Mr Petrovski’s current right knee injury has been a natural progression of his pre-existing right knee condition.
166 The burden of proof is on Mr Petrovski to satisfy me that he suffered a long-term right knee injury in the accident. In considering all of the evidence, I am not satisfied that Mr Petrovski suffered a persisting right knee injury in the accident. In addition, I am not satisfied that the accident was a cause of Mr Petrovski’s current right knee impairment. I therefore dismiss his application in respect of his knee injury.
Conclusion
167 I dismiss Mr Petrovski’s application and will make the consequent orders.
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